5.  The first applicant, Ms Kaemena, was born in 1967 and is currently detained in Vechta. The second applicant, Mr Thöneböhn, was born in 1968 and is currently detained in Celle.
6.  On 9 May 1996 the first and the second applicant were arrested and placed in pre-trial detention on suspicion of having jointly murdered the first applicant’s husband on 2 May 1996.
7.  On 5 September 1996 the indictment for murder was preferred against the applicants with the Verden Regional Court.
8.  On 21 January 1997 the Verden Regional Court opened the trial against the applicants, who were represented by counsel throughout the proceedings before the domestic courts, and against another co-defendant (M.).
9.  On 16 December 1997 the Verden Regional Court convicted the applicants and their co-defendant, who had all denied the charges, of having jointly murdered the first applicant’s husband, who had stood in the way of the applicants’ plan to marry, and sentenced them to life imprisonment.
10.  Having heard more than fifty witnesses and at least five experts, having inspected the scene of the crime and having analysed the time and duration of numerous telephone calls between the defendants, the Regional Court concluded that the first applicant had given 20,000 Deutschmarks to M. and had lured her husband to a remote place, where he had been shot by the second applicant and M. acting jointly.
11.  The Regional Court found that in view of their considerable involvement in their intimate relationship, in which they had driven each other to commit the offence in question, the applicants’ guilt was not of a particular gravity (Article 57a § 1 of the Criminal Code; see paragraph 45 below).
12.  On 17 December 1997 the applicants both lodged an appeal on points of law. They complained, inter alia, that the Regional Court had made a procedural error in that it had based its judgment on a document containing a list of telephone calls they had made without that evidence having been produced at the main hearing.
13.  The Public Prosecutor’s Office likewise lodged an appeal on points of law, which it reasoned on 29 May 1998. It contested in particular the Regional Court’s finding that the applicants’ guilt was not of a particular gravity.
14.  By a decision of 10 February 1999 the Federal Court of Justice (third senate) dismissed the applicants’ appeal on points of law as manifestly ill-founded. It added that it considered the applicants’ appeal to be inadmissible in so far as they had alleged a procedural error. It argued that the applicants had failed sufficiently to substantiate this complaint. They had not informed the court that in the summons for a witness working for the telephone company who had listed the applicants’ phone calls, the president of the Regional Court had stated that the witness was called to explain the content of the said list of calls.
15.  By a judgment delivered on the same day, the Federal Court of Justice, having held a hearing, allowed the prosecution’s appeal on points of law. It quashed the judgment of the Verden Regional Court in so far as the latter had not considered the applicants’ guilt to be of a particular gravity and remitted the case to a different chamber of the Regional Court.
16.  By submissions dated 8 and 9 April 1999 respectively the second and the first applicant lodged a constitutional complaint with the Federal Constitutional Court. They notably contested the Federal Court of Justice’s finding that their appeal had been inadmissible in so far as they had alleged a procedural error.
17.  On 5 July 2001 the Federal Constitutional Court communicated the constitutional complaints to the Federal Court of Justice and the Federal Public Prosecutor for observations.
18.  On 6 December 2001 the Federal Public Prosecutor submitted his observations to the Federal Constitutional Court. On 27 December 2001 the president of the Federal Court of Justice filed the observations of all senates of that court.
19.  In January 2002 the Federal Constitutional Court invited the applicants to submit written observations in reply by 30 April 2002.
20.  On 20 August 2002 the first applicant and on 14 October 2002 the second applicant lodged observations in reply. Both applicants had previously been informed by the Federal Constitutional Court, at their request, that the court would not take a decision before the end of that year.
21.  On 30 March 2004 the Federal Constitutional Court informed the first applicant, at her request, that a decision would probably be taken in the course of the year 2004.
22.  On 25 January 2005 the Federal Constitutional Court, sitting as a senate of eight judges, quashed the decision of the Federal Court of Justice of 10 February 1999 and remitted the case to that court (file no. 2 BvR 657/99 and no. 2 BvR 656/99).
23.  In its leading decision (running to 45 pages), the Federal Constitutional Court examined the constitutionality of the requirements set forth in the case-law of the Federal Court of Justice which an appellant has to satisfy in order to lodge an admissible appeal on points of law about a procedural error. The Federal Constitutional Court found that as a rule, these requirements did not violate the individuals’ right to effective legal protection. However, in the applicants’ case, having regard to the entirety of their submissions made, the Federal Court of Justice had over-stretched the said requirements by requesting information also about a witness’s summons as such, and had therefore breached the applicants’ right to effective legal protection.
24.  The Federal Constitutional Court’s decision was served on the applicants’ counsel on 25 May 2005.
25.  In their submissions dated 18 July 2005 to the Federal Court of Justice the applicants, contesting the Federal Public Prosecutor’s view, argued, in particular, that the proceedings had lasted unreasonably long. They requested the court to find a violation of Article 6 § 1 of the Convention (the first applicant argued that there had also been a breach of Article 5 § 3 of the Convention) and to mitigate the length of their prison term in compensation.
26.  On 28 September 2005 the execution of the arrest warrant against the first applicant was suspended and she remained at liberty until 23 February 2006.
27.  The hearing fixed for 1 December 2005 had to be cancelled as the first applicant’s counsel were unavailable.
28.  On 15 December 2005 the second applicant suffered a heart attack.
29.  Having held a hearing on 12 January 2006, the Federal Court of Justice (third senate) dismissed the applicants’ appeal on points of law by judgment of 7 February 2006. It found that the applicants’ complaint that the Regional Court had made a procedural error in using the telephone lists in evidence was ill-founded because the time and duration of the telephone calls in question had been confirmed by different witnesses who had been confronted at the hearing with the data contained in the telephone list.
30.  Moreover, the Federal Court of Justice found that the length of the proceedings did not warrant a mitigation of the applicants’ sentence of life imprisonment.
31.  The lapse of time since its decision of 10 February 1999 was not automatically attributable to the judicial authorities only because the Federal Constitutional Court had subsequently quashed that decision. It argued that, as a rule, the fact that a decision was quashed and the case remitted to the lower court did not entail a violation of the right to have one’s case heard within a reasonable time, but was a necessary consequence of the possibility to rectify mistakes on appeal. Only delays caused by decisions which disclosed a flagrant breach of the law could therefore be considered as having delayed the proceedings contrary to the rule of law. As in the present case its decision of 10 February 1999 did not disclose such a flagrant breach of the law, there had not been a delay which was attributable to the judicial authorities since then.
32.  Moreover, the Federal Court of Justice considered that it could leave open the question whether the Federal Constitutional Court had failed to treat the applicants’ constitutional complaints without undue delay. Even assuming that there had been such a delay, the applicants could not claim redress therefor. Pursuant to Article 211 of the Criminal Code (see paragraph 43 below) a person acting with criminal responsibility who was found guilty of murder had to be sentenced to life imprisonment. The court further left open whether an exception to this rule had to be made in exceptional cases in which there had been an extreme delay, as this was not the case in the proceedings against the applicants. As their convictions and their sentence had been final according to the provisions of the Code of Criminal Procedure already on 10 February 1999, the uncertainty arising from the applicants’ mere hope that the Federal Constitutional Court would allow their constitutional complaints did not entail a strain which necessitated compensation. In these circumstances, there was no reason for a mere declaration that there had been a violation of the Convention.
33.  The judgment was served on the applicants’ counsels on 9 March 2006.
34.  In April 2006 the applicants lodged a constitutional complaint with the Federal Constitutional Court against the judgment of the Federal Court of Justice of 7 February 2006. Invoking their right to liberty and to be heard within a reasonable time, they argued in particular that due to the excessive delays in the proceedings, in particular between 10 February 1999 and 7 February 2006, their sentences of life imprisonment should have been reduced to fixed terms of imprisonment.
35.  On 21 June 2006 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider the applicants’ constitutional complaints (file no. 2 BvR 750/06 and no. 2 BvR 752/06) as these were manifestly ill-founded.
36.  Even though the Federal Constitutional Court was not convinced that the duration of proceedings before it could be added to the length of criminal proceedings, as it was not part of the ordinary system of legal remedies, it left this question open. It found that it was not necessary to examine whether there had been undue delays contrary to the rule of law in the proceedings before it or before the Federal Court of Justice.
37.  Even assuming such delays, a reduction of the applicants’ sentences was excluded because in cases of murder, the sentence of life imprisonment was mandatory according to Article 211 of the Criminal Code. Therefore, a violation of the right to be heard within a reasonable time could not, as a rule, lead to a mitigation of this sentence. The court reiterated that the unreasonable duration of criminal proceedings could reduce an offender’s guilt and could, in exceptional cases, even warrant compensation by dispensing with punishment or by discontinuing the proceedings. However, Article 211 of the Criminal Code did not authorise the courts to consider any aspects reducing a murderer’s guilt such as the excessive duration of the proceedings against him or her. This finding was confirmed by Article 78 § 2 of the Criminal Code (see paragraph 44 below). By ruling that murder was not subject to the statute of limitations, the legislator showed that even long delays between the commission and the conviction of this offence should not be taken into consideration as a mitigating factor.
38.  The Federal Constitutional Court found that it could be left open whether in cases in which decades had passed between the commission of the offence and the murderer’s final conviction a mitigation of the sentence of life imprisonment was necessary for reasons of proportionality. Even assuming that there had been unreasonable delays in the present proceedings after the Federal Court of Justice’s decision of 10 February 1999, these had not been so long as to justify a mitigation of the mandatory life sentence prescribed by law for murder.
39.  The court, disagreeing with the applicants, further found that the rights of a murderer were not less protected than those of other offenders. Unreasonable delays during the proceedings before the criminal courts could, for example, lead to his or her release from detention pending trial.
40.  The decision was served on the applicants’ counsel on 5 July 2006.
41.  On 6 November 2006 the Verden Regional Court resumed the proceedings concerning the question whether the applicants’ guilt was of a particular gravity, which it had suspended at the applicants’ request.
42.  In its judgment delivered on 15 December 2006 the Verden Regional Court found that, having regard to the circumstances in which the murder had been committed, the applicants’ guilt was not of a particular gravity (Article 57a § 1 of the Criminal Code).